r Corporation, without a doubt, invaded the statuary right of the RIAA to license their copyrighted sound recordings to others for reproduction. Napster does argue the RIAA has not shown that such licensing is traditional, reasonable, or likely to be developed. Furthermore, its activities can only enhance sales since subscribers cannot gain access to particular recordings made available by Napster unless they have already purchased, actually or purportedly, or agreed to purchase, their own CD copies of those recordings. Such an argument consists almost entirely of speculative and conclusory statement and usually is unpersuasive to a judge of the court. Any alleged positive impact of Napster on the music industries prior market in no way frees them to usurp a further market that directly derives from reproduction of the RIAA copyrighted works.In closing, Napster only real challenge to the RIAA’s Prima face case of infringement is the suggestion that its music files are not in fact reproductions of copyrighted work within the meaning of the Copyright Act. Specifically, Napster claims that the simulated sounds of its music files are not physically identical to the sounds on the original CD recordings. However the human ear cannot detect the difference between the two and the idea is to create a music file that is sonically as identical to the original CD as possible. In such circumstances some light, humanly undetectable differences between the original and the copy does not qualify for exclusion from the coverage of the Copyright Act and Napster’s fair use defense is indefensible and was denied as a matter of law. In May of this year while Napster contends, under the rubric of copyright misuse that the RIAA is misusing their dominate market position to selectively prosecute only certain online music technology companies, admissible evidence of records show only that the RIAA has reasonably exercised their rights to determine...
